Born v. Allegheny, &C. Plank Road Co.

• Decision Date: 25 October 1882
• Citation: 101 Pa. 334
• Parties: Born <I>versus</I> Allegheny & Perrysville Plank Road Company.
• Court: Pennsylvania Supreme Court

Page 334

101 Pa. 334

Born versus Allegheny & Perrysville Plank Road Company.

Supreme Court of Pennsylvania.

October 17, 1882.

October 25, 1882.

October 17th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, TRUNKEY, STERRETT and GREEN, JJ. PAXSON, J., absent

ERROR to the court of Common Pleas No. 2, of Allegheny county: Of October Term 1882, No. 55 W. D. Moore, for the plaintiff in, error.—Direct notice to the defendant company of the obstruction in their road was not an essential element in the plaintiff's case. It was defendant's duty to exercise a reasonable supervision over their toll road, and maintain it in a safe condition for travelers. The obstruction had remained on the road more than four days; it was within the rural portion of Allegheny City, and within a quarter of a mile from the toll gate and its keeper's residence. Under these circumstances, it was a question for the jury, whether the defendant company had been guilty of negligence. The court also erred in holding as matter of law that the plaintiff was guilty of contributory negligence.

Thomas M. Marshall, for the defendant in error.—The plaintiff's own evidence showed that he was driving on a dark night, on the left (wrong) side of the road, abreast of another wagon and talking to its occupant, at a speed of about fifteen miles an hour, which was such a reckless gait as to make it impossible for him to stop suddenly; and such a rate as to make him liable to arrest and fine for fast driving, under an ordinance of the City of Allegheny. He was perfectly familiar with the locality, as his residence was out on the road, and his place of business in Allegheny, and he had driven over the road, passing the stone pile, earlier in the same evening. Where the inference from the facts is necessarily that there was negligence or contributory negligence, the court should decide the question as a matter of law: R. R. Co. v. McClurg, 6 P. F. S. 294.

The temporary occupation of a part of a street or highway by a person engaged in building is allowed from the necessity of the case, and the defendant company was not in fault in not removing the stones: Commonwealth v. Passmore, 1 S. & R. 219; People v. Cunningham, 1 Denio 524; Eggleston v. Road Co., 82 N. Y. 278.

Mr. Justice TRUNKEY delivered the opinion of the court, October 25th 1882.

A corporation which is bound to keep its highway in repair and safe condition, is liable for an injury caused by its neglect to do so, and it is immaterial whether the neglect was willful or otherwise. Where ignorance of the defect is the result of omission of duty, actual knowledge of its existence is not an essential to the fixing of such liability. If the exercise of proper supervision would have led to discovery of the nuisance in time to remove it, or to protect the public against it, there is the same liability for an injury caused by the nuisance as if there had been notice or knowledge of it: Norristown v. Moyer, 67 Pa. St. 355; Erie City v. Schwingle, 22 Id. 384. When the temporary occupation of the road by a person engaged in building is necessary, due care must be taken to guard the public from the danger, and if this be left undone the corporation is answerable for the injury...